Freda BUTLER-BOHN, Plaintiff, v. WALMART, INC., Walmart Stores East, LP, and Walmart Associates, Inc., Defendants Civil Action No. 7:22-cv-156-TMC-KFM United States District Court, D. South Carolina, Spartanburg Division Signed July 13, 2022 Counsel Brian P. Murphy, Stephenson and Murphy, Greenville, SC, Matthew Randall Ozment, Grove Ozment LLC, Greenville, SC, for Plaintiff. Katie Elizabeth Towery, William H. Foster, III, Benjamin Tradd Hepner, Littler Mendelson PC, Greenville, SC, for Defendants. McDonald, Kevin F., United States Magistrate Judge ORDER *1 This matter is before the court on the plaintiff's motion to compel (doc. 24). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. In her complaint, the plaintiff, who has a form of muscular dystrophy and related conditions, alleges that the defendants are an integrated operation that constitute a single employer for purposes of the Americans with Disabilities Act (“ADA”) (doc. 1, comp. ¶¶ 3, 5). The plaintiff alleges that she applied for two positions at the defendants’ store 1035 in Spartanburg County, and she was offered and accepted the position of fitting room associate. Thereafter, the plaintiff was sent an email stating that she was not being hired for the position. The plaintiff alleges that the defendants refused to hire her based on her disability in violation of the ADA (id. ¶¶ 5-22). The plaintiff served her first set of discovery requests on February 8, 2022, and, after receiving a 30-day extension, the defendants served their responses on April 8, 2022. The plaintiff filed a motion to compel on April 12, 2022 (doc. 24), and the defendants filed a response on April 26, 2022 (doc. 25). In their response, the defendants noted that they served supplemental responses to the plaintiff's discovery requests on April 25, 2022, in an effort to address the issues raised by the plaintiff (id. at 2). The plaintiff filed a reply on May 2, 2022, conceding that some issues had “narrowed” since the filing of the motion to compel, but arguing that several issues remained (doc. 27). On May 4, 2022, the undersigned issued a text order directing the parties to confer in good faith in an effort to resolve the discovery issues remaining in the motion to compel (doc. 29). As instructed in that order, the parties jointly filed a status report on May 11, 2022, outlining the issues that remained (doc. 30). On June 30, 2022, the court followed up by email with the attorneys to see if further progress had been made. Defense counsel indicated that the defendants would be serving the plaintiff with their second supplemental discovery responses later that same day. Accordingly, the parties were instructed to confer after the plaintiff had an opportunity to review the second supplemental discovery responses and to jointly inform the court by email by Friday, July 8, 2022, if any of the remaining few issues had been resolved. Notwithstanding this instruction, the plaintiff individually filed a second status report (doc. 32) on July 8, 2022. Consequently, the defendants submitted their own status update to the court by email, which the undersigned has attached to this order, so that it will also be made part of the record (see attach. A). The issues remaining for the court's consideration will be addressed in turn below. Attorney-Client Privilege and Work Product The defendants raised attorney-client privilege and/or work product doctrine objections to several of the plaintiff's interrogatories (doc. 24-1, interrog. nos. 5, 6, 9, 10, 14, 15). However, as argued by the plaintiff, “[T]he protection of the [attorney-client] privilege extends only to communications and not to facts.” Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (emphasis in original) (internal quotation marks and citation omitted). To the extent the defendants have failed to provide responsive information to the plaintiff's interrogatories based upon attorney-client privilege and/or work product doctrine objections, the motion to compel is granted. *2 The defendants also raised attorney-client privilege and/or work product doctrine objections to several of the plaintiff's requests for production (doc. 24-1, requests for prod. nos. 7, 10, 13). To the extent the defendants have withheld any responsive documents based on these objections,[1] they must provide a Federal Rule of Civil Procedure 26(b)(5) privilege log. Oppenheimer v. Williams, C.A. No. 2:20-CV-4219-DCN, 2021 WL 5359283, at *3 (D.S.C. Nov. 17, 2021) (“It is the law in this district that ‘[i]f a general objection of privilege is made without attaching a proper privilege log, the objection of privilege may be deemed waived.’ ” (quoting Curtis v. Time Warner Ent.-Advance/Newhouse P'ship, C.A. No. 3:12-2370-JFA, 2013 WL 2099496, at *3 (D.S.C. May 14, 2013))). Interrogatory No. 13 Interrogatory no. 13 and the defendants’ response and supplemental response were as follows: 13. For each plan identified in your response to the preceding Interrogatory [stated to include welfare benefit, pension, savings, life insurance, and stock purchase/option plans] set forth the amount of premium or contribution (including matching contributions) on a monthly or other basis (please specify) that Defendant pays for the coverages or benefit levels that can be elected by individuals employed in the position conditionally offered to Plaintiff. Response: Defendants object on the grounds that this Interrogatory is overly broad, vague and ambiguous as to the phrase “each and every benefit plan,” which could include a variety of benefits provided by other entities, including the government. Defendant further objects on the grounds that this discovery request lacks foundation and assumes facts that have not been established; namely, that Plaintiff was hired by Defendants such that she was “covered” by any benefits offered to Defendants’ employees. Subject to and without waiving any objections, see documents produced herewith, including the 2021 Benefits Book and Benefits Overview. Supplemental response: Defendants object on the grounds that this discovery request lacks foundation and assumes facts that have not been established; namely, that Plaintiff was hired by Defendants such that she was “covered” by any benefits offered to Defendants’ employees. Subject to and without waiving these objections, see documents produced herewith, including the 2021 Benefits Book and Benefits Overview (Bates numbered WALMART_BUTLER_0000018-359. These documents set forth the full scope of benefits Plaintiff may have become eligible to receive had she been hired to the fitting room position, assuming she applied for and was otherwise eligible for same. (Docs. 24-2, 25-1). The plaintiff seeks lost wages and benefits as part of her damages, and she argues that she simply seeks the amount of premiums paid by the defendants for each benefit that would have covered her if the defendants had not revoked its job offer. She further contends that the documents provided by the defendants do not provide the answer (doc. 24 at 17). The defendants argue that they cannot provide anything more definitive because the plaintiff made no benefits selections, and the premium paid by the defendants depends on the plan selected by the plaintiff (attach. A). The defendants note, however, that if the plaintiff could tell the defendants what plan(s) she “would likely have selected,” then the defendants “may be able to provide more specific information” (id.). The plaintiff argues: *3 [T]here are different set rates based on levels of coverage, Walmart knows what they are, and Walmart won't disclose them. The onus is not on Plaintiff to blindly assert what she would have chosen. Nor does Walmart show that the information is not discoverable. The notion that information about damages is not discoverable because Plaintiff was not hired makes no sense. Walmart should be required to disclose the premiums it pays at each option level. The parties can then conduct discovery on what level would apply. (Doc. 32 at 3). The undersigned agrees with the plaintiff that requested information is clearly discoverable and should be provided. Accordingly, the motion to compel is granted as to this interrogatory. Request for Production No. 10 10. A copy of document and electronic file retention policies in effect from September 2019 through the present. RESPONSE: Defendants object to this Request to the extent it is not properly to the scope of the issues raised in this lawsuit, and because it seeks information without regard as to whether it is relevant to any party's claims or defenses, or proportional to the needs of the case. Defendants object to this Request to the extent it seeks information protected by the attorney-client privilege and/or attorney work product doctrine. Defendants further object to this Request to the extent that it seeks confidential and/or proprietary information. Defendants further object because discovery is self-executing, and a party is not entitled to discovery for the sole purpose of verifying the other side's compliance therewith. The Federal Rules do not grant parties the right to take formal discovery to test the sufficiency of each other's document retention, preservation or production efforts, absent evidence of misconduct, which evidence is absent here. SUPPLEMENTAL RESPONSE: Same as above. (Docs. 24-2, 25-1). The plaintiff notes that the defendants have failed to produce documents from its own system offering her the position of fitting room associate and also failed to produce a later email rejecting her in favor of “other candidates who are more qualified for the position” (doc. 24 at 2-5). Moreover, the plaintiff argues that the “need to examine Walmart's own retention policies is now even more compelling,” because in their second supplemental discovery responses, the defendants have now disclosed that the emails sent to the plaintiff “regarding the fitting room associate position were sent from an automated email system which is no longer active or maintained by Walmart – careerpreference@wal-mart.com” (doc. 32) (citing doc. 32-1 at 2). “Document retention polices are generally discoverable.” PCS Phosphate Co. v. Am. Home Assurance Co., C.A. No. 5:14-CV-99-D, 2015 WL 8490976, at *5 (E.D.N.C. Dec. 10, 2015) (citations omitted). However, the defendants argue that they “are part of a global organization that maintains countless documents for compliance with any number of state, federal, and other national laws and regulations, in addition to internal business reasons, regarding document retention,” and the plaintiff's “request for all such policies unlimited by subject matter or geographical boundary is so broad it is virtually impossible to determine what documents or communications should be identified and included in a response” (doc. 25 at 6). In her reply, the plaintiff makes clear that she is not “asking for records retention policies related to environmental issues in France” (doc. 27 at 10). Accordingly, the defendants are directed to produce the document and electronic file retention policies in effect from September 2019 to the present that would apply to the plaintiff's application for employment at store 1035 in Spartanburg County, South Carolina. *4 Wherefore, based upon the foregoing, the plaintiff's motion to compel (doc. 24) is granted in part as set forth above and is denied as moot in all other respects. The defendants must provide their discovery responses and privilege log by August 3, 2022. No future motions relating to discovery shall be filed in this case until counsel have consulted and attempted to resolve the matter as required by Local Civil Rule 7.02 and have had a telephone conference with the undersigned in an attempt to resolve the matter informally. The request for a telephone conference should be made within the time limit prescribed by local rule for filing such motion. Attorneys should send a request for a telephone conference via email to mcdonald_ecf@scd.uscourts.gov, and the parties shall set forth their respective positions in their request. IT IS SO ORDERED. Footnotes [1] In their response in opposition to the motion to compel, the defendants state that they have confirmed that “they are not withholding any responsive documents based on privilege” (doc. 25 at 5), but their second status report is not so clear (see attach. A).